Moolchand Patni vs State of M.P. and another

T.P. Naik, J.

This is a criminal revision arising out of proceedings u/s 145 of the Code of Criminal Procedure.

On 30th of May 1964, the Station Officer, Ganj Police Station, Raipur, filed a complaint in the Court of the Sub-Divisional Magistrate, Raipur, alleging apprehension of a breach of the peace over a dispute between party No. 1-Brijkishore (non-applicant No. 2) and party No. 2-Moolchand (applicant) in respect of the possession of a house No. 21 /489, situate in Mohalla Ramsagar-para, and prayed that action u/s 145 of the Code of Criminal Procedure be taken. The report further stated that the parties were claiming the house on the strength of sale deeds executed in their favour in the years 1947 and 1931 respectively by one Nathmal. It further stated that on 25th of May 1964, at about 2 p.m., there was a quarrel between the parties over the possession of the house which had also led to assault but that the dispute did not take any serious turn because the police reached there soon afterwards. Along with the report various sanha reports were also filed showing that the parties were quarrelling over the possession of the house for quite some time. The learned Magistrate, instead of passing a preliminary order u/s 145(1) of the Code of Criminal Procedure, either through ignorance or inexperience, only chose to summon both the parties for their appearance in his Court on 2-7-1964. He did not get wiser even when party No. 1 Brij-Kishore filed. an application on 16-6-1964 for the issuance of a preliminary order, as the matter was very urgent and the passing of such an order was necessary for prevention of the breach of the peace. In spite of the receipt of the said application he recorded in the order-sheet that he would visit the spot on 18-6-1964, at 9 A.M. On 18-6-1964 no spot inspection was done as party No. 1 Brijkishore was not present. The learned Magistrate, however, on that date ordered that a special report be called for from the police. The case was fixed for 2-7-1964. On 2-7-1964, party No. 1 Brijkishore appeared but party No. 2 Moolchand was absent. After hearing party No. 1 Brijkishore and taking into consideration the report of the Station Officer, dated 27-6-1964, to the effect that there was no apprehension of the breach of the peace and that it was also not necessary to attach the house in dispute, an order was passed directing the issuance of a preliminary order as also the attachment of the house in dispute; but on the request of the counsel for party No. 2 Moolchand, who appeared immediately after the order-sheet was closed, the issuance of the preliminary order was postponed and the case was fixed for 4-7-1964 for hearing both the parties. The parties were heard on 7-7-1964 and on 9-7-1964 the preliminary order was passed as also the order for attachment of the house in dispute.

The Learned Counsel for the party No. 2 Moolchand challenges the preliminary order, inter alia, on the ground that it was illegal and without jurisdiction, in so far as it was passed beyond the period of two months of the alleged date of dispossession of party No. 1 Brijkishore by party No. 2 Moolchand.

The object of Section 145 of the Code of Criminal Procedure is to prevent a breach of the peace by arming the Magistrate concerned with powers to summarily and speedily determine actual possession of land etc. in dispute, so that the disputing parties are prevented from committing a breach of the peace on that account. With this end in view, the Magistrate concerned is further empowered under Sub-section (I) of that section to pass a preliminary order as soon as it is brought to his notice by the parties concerned or by the police that a dispute likely to cause a breach of the peace exists. The only condition precedent to the passing of such an order is that the Magistrate must be satisfied that a dispute likely to cause a breach of the peace exists and must record in the order the grounds of his being so satisfied. Further, as the matter is of urgency, this satisfaction of the Magistrate is to be based not on any elaborate inquiry but only on the police-report or on such other information as he may have received from the parties concerned or otherwise. By this order the Magistrate further requires the parties concerned in such disputes to attend his Court in person or by pleaders within the time fixed by him for the purpose and to put in written statements of their respective claims as regards the fact of actual possession of the subject-matter in dispute. Sub-section (4) of that section then provides that the Magistrate shall conclude his inquiry, as far as may be practicable, within a period of two months from the date of appearance of the parties before him. It will be observed that in these proceedings Courts are not concerned with the rights and title of the disputing parties to the subject-matter in dispute. They are only concerned with the fact of possession of the property in dispute on the date of the preliminary order, actual or fictional, irrespective of its being rightful or wrongful, and maintaining the person in actual possession on that date from being forcibly dispossessed until such time as the right and title of the parties are determined by a competent Court in appropriate proceedings.

Once the aforesaid crucial facts are realised, the fallacy in the contention of the Learned Counsel for the applicant would become apparent. At the stage of the passing of the preliminary order, the Magistrate is not concerned with the merits of the dispute, nor with the question of possession which may be with the true owner or with the trespasser. At that stage, he is solely concerned with the prevention of breach of the peace. Consequently, if he is satisfied as to its existence, the first step that he must take for its prevention is to pass a preliminary order. It is only thereafter that he is empowered to undertake the inquiry as to the fact of actual possession and pass an order under Sub-section (6) of Section 145 of the Code either declaring one or the other of the parties to the dispute to be entitled to possession or attaching the property in dispute until a competent Court has determined the rights of the parties thereto.

In the instant case, the learned trial Magistrate, did not clearly realise the nature and importance of the proceedings initiated by the police on the 30th of May 1964 u/s 145 of the Code of Criminal Procedure with the result that instead of first considering whether on the material before him there was a reasonable apprehension of a breach of the peace and, on being so satisfied, passing a preliminary order as required by Sub-section (1) of Section 145, he chose to deal with the case in a leisurely way by first summoning the parties to the dispute to appear before him on 2-7-1964 and then even when party No. 1 Brijkishore, on 16-6-1964, prayed for an immediate passing of a preliminary order, by postponing its issuance till after he had visited the spot on 18-6-1964 and thereafter, again, for one reason or the other, by delaying the passing of the preliminary order till 9-7-1964. Even so, it must be taken to be an order passed by the learned Magistrate under Sub-section (1) of Section 145 of the Code, as the only condition necessary for the passing of such an order, namely, that he must be satisfied on a police-report, or otherwise that a dispute likely to cause a breach of the pease exists, had been satisfied. The section does not provide for any limitation within which the preliminary order is to be passed. It should be passed whenever the Magistrate is satisfied from the police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land etc. But as the whole inquiry has to be concluded, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him, it. appears that the intention of the ''Legislature is that it should be passed without undue delay after the fart that a breach of the peace is apprehended in respect of some immovable property has been brought to his notice. It will always depend on the facts of each case when it ought to be passed. The Legislature, in its wisdom, has Mt the question open and it would not be proper to limit the period by judicial decisions. There may be cases as here where it could be passed immediately after a police-report or a party''s application had been received by the Magistrate: but there may also be cases where, on the material before him, the Magistrate may not feel satisfied and may require further material. It is for this reason that Sub-section (1) of Section 145 of the Code specifically says that it has to be passed ''whenever'' the Magistrate is so satisfied. It may here be observed that though Sub-section (4) of Section 145 provides that the question of factual possession has to be decided with reference to the date of the preliminary order, the second proviso to that Sub-section, by legal fiction, permits the Magistrate to treat a party forcibly and wrongfully dispossessed to have been in possession of the property in dispute on the date of the preliminary order provided it appears to the Magistrate that such a party was forcibly and wrongfully dispossessed within two months next before the date of the preliminary order. This Sub-section gives a further clue to the necessity and urgency of passing a preliminary order as soon as the Magistrate feels satisfied from the police report or otherwise that a dispute likely to cause a breach of the peace exists. He shall not unduly delay the passing of such an order because his delay may inadvertently result in prejudicing the rights of a party who has been forcibly and wrongfully dispossessed and may further result in maintaining the possession of an admitted wrongdoor.

Why and how the possession of a person, who has been forcibly and wrongfully dispossessed, is to be protected is not a question which calls for consideration at this stage. I am not deciding the question whether, in conceivable cases, by importing the doctrine of nunc pro tune or otherwise, a person, who has been forcibly and wrongfully dispossessed and who has come to Court well within time to entitle him to relief under the second proviso to Sub-section (4) of Section 145 of the Code and who has become disentitled to such relief because of the latches on the part of the Court, may or may not be given such relief as the exigencies of his case may require. It is sufficient for the purpose of this revision to say that the passing of the preliminary order by the learned trial Magistrate on 9-7-1964 cannot ipso facto be said to be illegal and without jurisdiction, if, on that date, he was satisfied that a dispute likely to cause a breach of the peace existed concerning the house in dispute.

In Sheshrao Nagorao Patil v. Emperor 44 IC 973, Kotwal, A J C had ruled that ''the condition precedent authorizing a Magistrate to issue au order u/s 145(1), Code of Criminal Procedure, is that he should he satisfied that a dispute likely to cause a breach of the peace exists and that the fact the complaint shows that the complainant was out of possession of the property in dispute for over two months does not vitiate the proceedings u/s 145 of the Code, Simiiary, in Sheoraj Singh v. Emperor 19 IC 319 : 14 Cri.L.J. 223, it was pointed out that ''the jurisdiction of a Magistrate to initiate proceedings u/s 145 of the Code of Criminal Procedure is not determined by the date of dispossession of one of the parties claiming the land. It is determined by an apprehension based on reliable information that a dispute likely to cause a broach of the peace exists between the two parties concerning some land situate within the local limits of the Magistrate''s jurisdiction''. Neither Nago v. Atnwarti AIR 1926 Nag. 371 nor Emperor v. Parashram 20 NLR 377, nor Emperor v. Sandarlal and Ors. ILR 1937 Nag. 174 lays down anything to the contrary. In the former, Pindlay, 0 J C had held that where a preliminary order was passed more than three months after dispossession of the non-applicant, he (the non-applicant) could not be held to be entitled to possession under Sub-section (4) of Section 145 of the Code of Criminal Procedure. This case was followed in Emperor v. Sundarlal and Ors. ILR 1937 Nag. 174 by Gruer J. who stated that the second proviso to Sub-section (4) of Section 145 was only permissive and not mandatory and that the period of two months laid down in that proviso could not be extended whatever may be the cause of delay in passing the preliminary order. la Emperor v. Farashram 20 NLR 377, Macnair, O J C held that ''Section 145 of the Code of Criminal Procedure permits a Magistrate to treat a party, who has two months next before the date of the preliminary order been forcibly and wrongfully dispossessed as if he had been in possession at the date of the order; but if dispossession has taken place more than two months before the date of the order, the Magistrate cannot so treat the person dispossessed even if that person has made a complaint within two months of dispossession''. In consonance with the aforesaid view, S.B. Sen J. in Znnzarsingh v. Gaagabat Criminal Revision No. 194 of I960 decided oil 6-1-1961 said that the time limit prescribed under the second proviso to Sub-section (4) of Section 145 could, in no case, be extended.

A contrary view has, however, been taken by Bhutt J. (as he then was) in State v. Mir Ahamed Ali and Ors. 1955 NLJ 262 (Criminal Revision No. 548 of 1954 decided on 14-1-1955); relying on Chunchu Narayana and Others Vs. Karrapati Kesappa, , which has been dissented from in Gangadhar Singh and Others Vs. Shyam Sunder Singh, and Ganga Bux Singh Vs. Sukhdin, . But with such a question I am not at the moment concerned, and consequently it is not necessary for me to refer the case to a larger Bench to resolve the. conllicfc. In any case, these cases cannot and do not help the applicant in the present controversy.

The only case which supports the case of the applicant is Nilci v. Aka 66 PLR 245 wherein it has been held that ''a person who moves the Magistrate u/s 145 of the Code of Criminal Procedure must mention the time of his dispossession, because jurisdiction of the Magistrate can be invoked if the dispossession had taken place two months before the preliminary order is passed''. In that case, the non-applicant was the person who had initiated the proceedings u/s 145 of the Code on 3-8-1961 alleging that he had been dispossessed by the applicant about 1] months back. The preliminary order was passed on 31-8-1961, and by an order dated 1-3-1962 the non-applicant was declared entitled to possession. What the learned Judge, in fact, had held was that under those circumstances, the non-applicant could not be held entitled to possession because the period provided in the second proviso to Sub-section (4) of Section 145 of the Code of Criminal Procedure could not be enlarged, relying on the Full Bench decision of the Allahabad High Court in Ganga Bux Singh Vs. Sukhdin, . In my opinion, the observation of the learned Judge that the jurisdiction of the Magistrate depended on the date of dispossession is unwarranted in principle and unsupportable on authority.

Consequently, if on 9-7-1964 the learned Magistrate was satisfied that a dispute likely to cause a breach of the peace existed, he certainly had a right to pass the preliminary order and thereafter determine the question as to which of the parties should be declared to be entitled to possession until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction. He may also in cases governed by the second proviso to Sub-section (4) of Section 145 restore the possession of the party forcibly and wrongfully dispossessed. The contention of the Learned Counsel for the applicant presupposes that it is only the possession of the party forcibly and wrongfully dispossessed that has to be protected and that consequently if such party has been dispossessed more two months before the date of the passing of the preliminary order, the passing of such an order is of no consequence. That is not so, because the section strictly limits even violent self-help by a true owner. On the other hand it seeks to maintain, if necessary and if justified under the provisions of the section, the possession of even a wrongdoer-the prime consideration being the prevention of breach of the peace-by declaring one of the parties to the dispute to be entitled to possession until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction.

The application for revision thus fails and is hereby dismissed.

Revision application dismissed.